93 Decision Citation: BVA 93-14014
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-17 521 ) DATE
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THE ISSUE
Entitlement to a permanent and total disability rating for
pension purposes.
REPRESENTATION
Appellant Represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
B. Hoeft, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1965 to
July 1969.
This matter came before the Board of Veterans' Appeals (the
Board) on appeal from a May 1991 rating decision from the
Chicago, Illinois, Regional Office (RO) denying the
veteran's claim of entitlement to nonservice-connected
pension benefits. A notice of disagreement was received in
July 1991. A statement of the case was issued in
August 1991. A substantive appeal was received in
October 1991. A hearing was held at the RO in
November 1991. In December 1991, the Hearing Officer issued
a decision unfavorable to the veteran. A supplemental
statement of the case was issued in January 1992. A
subsequent rating decision and a supplemental statement of
the case were issued in March 1992. The case was received
and docketed at the Board in September 1992.
At the request of the veteran, a hearing was held on
November 20, 1992, in Chicago, Illinois, before
Mr. Joaquin Aguayo-Pereles, who is a member of the Board
section rendering this determination and was designated by
the Chairman to conduct that hearing, pursuant to
38 U.S.C.A. § 7102(b) (West 1991). This action is the
outcome of that hearing.
The veteran has been represented by the Disabled American
Veterans. That organization entered additional argument in
October 1992 and during the November 1992 hearing.
The Board notes that the veteran's representative has raised
the issue of entitlement to service connection for current
obesity and residuals of steroid treatment, alleging that
they were caused by improper treatment of asthma and chronic
obstructive pulmonary disease by VA health care providers.
Inasmuch as this issue has not been developed for appeal, it
is referred to the RO for further development.
REMAND
The veteran's representative has argued that the RO must
rate all disabilities before a decision on nonservice-
connected pension benefits can be rendered, and that the RO
has failed to rate the veteran's low back pain, bilateral
carpel tunnel syndrome, edema of the legs and a bilateral
knee disorder.
Before discussing nonservice-connected pension benefits, the
Board notes that in November 1991, the veteran amended his
claim to include entitlement to service connection for
post-traumatic stress disorder (PTSD). Although the RO has
not specifically addressed this issue, the veteran has
submitted a July 1991 psychological report from Gerard J.
Girdaukas, Ph.D., a clinical psychologist, who has diagnosed
recurrent major depression; severe alcohol dependence, in
remission; severe PTSD; and personality disorder not
otherwise specified with avoidant features. The veteran
reported to Dr. Girdaukas that he had served two tours in
Vietnam and was a submarine diver, patrolling the "Mi Cong"
Delta and making body recoveries. He claimed to have
sustained wounds in combat. The veteran also reported that
he had been treated in Denver, Colorado, in 1977 for
alcoholism, and for PTSD at the Palo Alto VA Hospital in
1984. Inasmuch as the RO has not adjudicated entitlement to
nonservice-connected pension benefits with respect to a
psychiatric disorder or service connection for a psychiatric
disorder, and a psychiatric disorder would be inextricably
intertwined with the issue of nonservice-connected pension
benefits, the Board has decided to remand the case for
additional development with respect to a psychiatric
disorder.
VA has a duty to assist the veteran in the development of
facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West
1991); Littke v. Derwinski, 1 Vet.App. 90 (1990). This duty
extends to securing relevant records, obtaining appropriate
examinations and diagnoses, and determining whether current
symptomatology is related to incidents in service.
Moreover, a preliminary review of the record discloses a
fundamental issue with respect to the veteran's claim for
service connection for PTSD that must be addressed. In his
March 1990 claim for benefits, appellant reported his period
of service as extending from June 1965 to June 1969. No
other periods of service were claimed. The record contains
a DD Form 214, Armed Forces of the United States Report of
Transfer or Discharge, that reflects service dates from June
30, 1965, to June 27, 1969. No prior service is shown. The
appellant was credited with three years, six months of
"foreign and/of sea service." His only reported award or
decoration was the National Defense Service Medal. No award
of the Purple Heart Medal is shown. There is no entry on
the DD Form 214 that in any way reflects service in the
Republic of South Vietnam. Accordingly, clarification of
this matter is necessary.
With respect to nonservice-connected pension benefits, the
United States Court of Veterans' Appeals (Court) has
rendered several opinions which affect the development and
analysis of claims for permanent and total disability
ratings for pension purposes. In Talley v. Derwinski,
2 Vet.App. 282 (1992) the Court explained that pension cases
must be adjudicated applying both an objective and
subjective standard and that the adjudicatory body must be
clear as to which standard is applied. In Roberts v.
Derwinski, 2 Vet.App. 387, 389 (1992) the Court found that
the appellate decision was deficient, in part, because it
only considered the regulations applicable to pension
benefits without evaluating each one of the veteran's
disabilities under the rating schedule first. The Court
noted that an evaluation must be performed under the
Schedule for Rating Disabilities to determine the percentage
of impairment caused by each disability. This means that
the RO has the responsibility of identifying all
disabilities which the veteran currently has, determining
whether they are permanent in nature and assigning a
schedular evaluation for each one of them under the VA
Rating Schedule, 38 C.F.R. Part 4 (1991). The Court further
noted that consideration of the claim on an extra-schedular
basis under 38 C.F.R. § 3.321(b)(2) (1991) was not
addressed. Thus, the RO has an additional obligation to
determine whether any of the disabilities should be assigned
an extra-schedular evaluation in lieu of the schedular
evaluation provided in the VA Rating Schedule,
38 C.F.R. Part 4 (1991). In the course of adjudicating the
claim, the RO must also make determinations as to whether
any of the disabilities in question are the result of the
veteran's willful misconduct. 38 U.S.C.A. § 1521(a) (West
1991) Abernathy v. Derwinski, 2 Vet.App. 391, 394 (1992).
The necessary steps in adjudicating pension claims were
carefully delineated in Talley, Roberts, and Brown v.
Derwinski, No. 90-505 (U.S. Vet. App. June 1, 1992). The
Court has analyzed the law with respect to pension
entitlement 38 U.S.C.A. § 1502 (West 1991) and set up a
two-prong test for pension eligibility. The Court indicated
that permanent and total disability could be shown in one of
two ways: Either (1) the veteran must be unemployable as a
result of a lifetime disability (this is the "subjective"
standard and is based on the veteran's individual work
experience, training and disabilities), or (2) if not
unemployable, he must suffer from a lifetime disability
which would render it impossible for the average person with
the same disability to follow a substantially gainful
occupation (this is the "objective" standard). In making
these determinations the RO must also apply the percentage
standards of 38 C.F.R. §§ 4.16 and 4.17, i.e., the objective
standard and consider entitlement to extra-schedular
evaluations under 38 C.F.R. § 3.321(b)(2), i.e., the
subjective standard. It is important to note that the
reduction of the minimum percentage requirements based on
age were rescinded in the most recent promulgation of
38 C.F.R. § 4.17. 56 Fed. Reg. 57985, Nov. 15, 1991.
Although the RO specifically addressed peripheral vascular
disease, asthma, duodenal ulcer, face dermatitis and left
and right bilateral carpel tunnel syndrome, the record
before us does not show whether the appellant's claim was
decided with consideration of the above standards regarding
alleged disabilities of the low back, knees and edema of the
lower extremities. Furthermore, it is not clear whether
consideration was given to the veteran's claim under
38 C.F.R. § 3.321(b)(2). Therefore, the case must also be
remanded to consider these regulatory and case law standards.
In so doing, the Board notes that in December 1990, the
veteran sought treatment at a VA facility for low back and
knee pain. Physical examination of the lower back revealed
tenderness and absent reflexes; however, X-rays indicated no
significant degenerative changes. The impression was low
back pain, no radiculopathy. No examination of the knees
was reported. A current orthopedic examination of the low
back and knees would also be helpful in determining whether
there is any disability.
In addition, the veteran testified that he had been granted
Social Security supplemental security income (SSI) based on
disability (Hearing Transcript, November 20, 1992, at 7).
Although the record contains several medical reports which
appear to have been used in the Social Security
adjudication, the actual basis of the award of SSI was not
apparent. As a result, the entire Social Security claim
folder and disposition should be obtained for review.
Under the circumstances of this case, we are of the opinion
that additional assistance to the veteran is required.
Accordingly, the case is REMANDED to the RO for the
following:
1. The RO should make another attempt to
secure the veteran's service medical
records which, in 1991, were reported to
have been sent to the San Francisco
Regional Office from the National
Personnel Records Center.
2. The RO should obtain copies of all
outpatient and inpatient treatment
records from the VA Medical Center in
Palo Alto, California, since 1984. The
Board is particularly interested in
reports of hospitalization and treatment
for psychiatric disorders including PTSD
and substance abuse. These records
should be associated with the claims
file.
3. The RO should contact the veteran in
writing and request that he submit a list
of all medical personnel and facilities
from which he received treatment for a
psychiatric disorder to include PTSD,
depression and substance abuse, since his
discharge from service. After obtaining
the necessary releases, the RO should
request the health care providers listed
by the veteran to furnish complete copies
of records pertaining to testing and
treatment of the veteran's psychiatric
disorder which have not already been
obtained. This would include history,
physical examinations, test results,
progress notes, consultations, etc. and
any other information pertaining to a
psychiatric disorder. These records
should also be associated with the claims
file.
4. The RO should also request the Social
Security Administration to provide copies
of the complete medical and other records
considered in its determination granting
any disability benefits to the veteran,
as well as a copy of the final
disposition including the reason for the
award. These records should be
associated with the claims file.
5. The RO should request the veteran to
provide documentation in his possession
that substantiates service in Vietnam.
The RO should further request from the
appellant a statement containing as much
detail as possible regarding the
stressors to which he was exposed during
service. The veteran should be asked to
provide specific details of the claimed
stressful events during service, such as
dates, places, detailed descriptions of
the events, his service units in Vietnam,
duty assignments and the names and other
identifying information concerning any
individuals involved in the events. The
veteran should be told that the
information is necessary to obtain
supportive evidence of the stressful
events and that failure to respond may
result in adverse action.
6. Regardless of the veteran's response,
the RO should review the file and prepare
a summary of all the claimed stressors.
This summary and all associated documents
should be sent to the United States Army
and Joint Services Environmental Support
Group (ESG), Building 247, Stop 387, Fort
Belvoir, VA 22060. See DVB Circular
21-86-10, particularly, paragraph 4(d).
They should be requested to provide any
information which might corroborate the
veteran's alleged stressors.
7. The RO should arrange for a social
and industrial survey to be conducted.
It should be ascertained if the veteran
is working and if so, how many hours per
week. Family members, former coworkers,
members of the community where the
veteran resides, former supervisors or
bosses, and the veteran should be
interviewed. The individual conducting
the survey should express an opinion with
complete rationale as to the impact of a
physical and psychiatric disabilities on
the veteran's ability to secure or follow
a substantially gainful occupation.
8. Following the above, the veteran
should be examined by a board of two VA
board-certified psychiatrists who have
not previously examined him to determine
the exact diagnosis, if any, of the
psychiatric disorder. Each psychiatrist
should conduct a separate examination
with consideration of the criteria for
PTSD. The examination report should
include a detailed account of all
pathology found to be present. If there
are different psychiatric disorders than
PTSD, the board should reconcile the
diagnoses and should specify which
symptoms are associated with each of the
disorder(s). If certain symptomatology
cannot be disassociated from one disorder
or another, it should be specified. If a
diagnosis of PTSD is appropriate, the
examiners should specify the credible
"stressors" that caused the disorder and
the evidence upon which they relied to
establish the existence of the
stressor(s). They should also describe
which stressor(s) the veteran
reexperiences and how he reexperiences
them. The psychiatrists should describe
how the symptoms of PTSD affect his
social and industrial capacity. Special
attention should be given to any
substance abuse and whether it is part of
or caused by a psychiatric disorder. All
necessary special studies or tests
including psychological testing and
evaluation such as the MMPI and the
Mississippi Scale for Combat-Related
Post-Traumatic Stress Disorder are to be
accomplished. The examiners should
assign a numerical code under the Global
Assessment of Functioning Scale (GAF).
It is imperative that the physicians
include a definition of the numerical
code assigned. Thurber v. Brown, No.
92-172 (U.S. Vet. App. May 14, 1993).
The diagnosis should be in accordance
with DSM-III-R. The entire claims folder
and a copy of this remand must be made
available to and reviewed by the
examiners prior to the examination. The
reports of examination should include a
complete rationale for all opinions
expressed, and they should be typewritten.
9. Following the above development, the
RO should adjudicate the claim of
entitlement to service connection for
PTSD and all other psychiatric disorders
found on examination.
10. The veteran also should be accorded
a general medical examination. The
examination should include any orthopedic
complaints and provide a comprehensive
report concerning the nature and extent
of all disability found except for
psychiatric illness. The report of
examination should include a detailed
account of all pathology found to be
present. All necessary tests should be
conducted and the examiner should review
the results of any testing prior to
completion of the report. The examiner
should comment on the impact of the
disabilities on the veteran's ability to
obtain and maintain gainful employment.
The claims folder must be made available
and reviewed by the examiner prior to the
examination. The examiner should provide
complete rationale for all conclusions
reached, and the report should be
typewritten.
11. Following the above, the RO should
readjudicate the claim for pension
benefits.
a. The RO must list all of the
veteran's disabilities on a formal rating
document and assign separate evaluations
to each disability. The RO should also
assess the history of the veteran's
disabilities and the effect of pain
(where appropriate). In evaluating each
of the disabilities, consideration should
be given to entitlement to an
extra-schedular evaluation 38 C.F.R.
§ 3.321(b)(2). If applicable, a
determination should be made as to
whether any of the disabilities are the
result of the veteran's willful
misconduct.
b. The issue should then be
considered under the two-prong test
enunciated by the Court in Brown. That
is with consideration of the "objective"
38 C.F.R. §§ 4.15, 4.16 and 4.17 and
"subjective" 38 C.F.R. §§ 3.321(b)(2),
4.15 and 4.17 standards described
previously.
12. The RO should review the examination
reports and determine if they are
adequate for rating purposes and in
compliance with this Remand. If not,
they should be returned for corrective
action.
Following completion of these actions, and if the decision
remains unfavorable to the veteran, he and his
representative should be provided with a supplemental
statement of the case and afforded a reasonable period of
time in which to respond. Thereafter, in accordance with
the current appellate procedures, the case should be
returned to this Board for further appellate consideration.
No action is required of the veteran until he receives
further notice.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
RICHARD B. FRANK (MEMBER TEMPORARILY ABSENT)
JOAQUIN AGUAYO-PERELES
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (1992).